His

position in this respect did not differ from that of a hackman or a truckman who is encouraged or invited to be in a railroad station for the convenience of the railroad's patrons in transporting them and their baggage to and from the station. Tobin v. Railroad, 59 Me. 183, 8 Am. Rep. 415; Wright v. Railway, L. R. 10 Q. B. 298; Holmes v. Railway, L. R. 4 Exch. 123. When he became its invitee by his actual presence in the station under a license from the defendant, its duty to him commenced.

defendant at the time of his injuries. The du- | was the duty of the railroad to exercise orties and rights of the parties depend upon dinary care for his reasonable safety. the legal relationship they sustained to each other at that time; for it may be that the semi-public character of the defendant and of the express company, as common carriers, does not impair, lessen, or enlarge the rights of the plaintiff as an individual to protection against the negligence of the defendant, or render inoperative and void his assent to a limited liability on the part of the defendant. If it is assumed that the defendant was and is a common carrier of expresses (McDuffee v. Railroad, 52 N. H. 430, 13 Am. Rep. 72), the plaintiff while at work in the deBut it is important to bear in mind that he fendant's station was not the express com- was not a passenger. "A person going upon pany. While he was its agent to a limited a railway train to assist another person on or extent, he did not thereby cease to be an in- off is clearly not a passenger." 3 Thomp. dividual entitled to certain rights and sub- Com. Neg. § 2658; 1 Fet. Carr. § 237. He was ject to certain liabilities with reference to not seeking transportation, either for himself others with whom he came in contact. What- or as the agent or employé of the express ever his contract was with the express com- company (Webster v. Railroad, 161 Mass. pany, he was entitled, not as its agent, but 298, 37 N. E. 165, 24 L. R. A. 521)-a circumas a man, to some degree of protection from stance of much importance which distinthe carelessness or negligent conduct of the guishes this case from Baker v. Railroad, 74 defendant; and, on the other hand, he owed N. H. 100, 65 Atl. 386. And it is not claimed the defendant the duty of right action by that he was a passenger, though it is sought virtue of his situation as an individual right- to apply to him the same principles relating fully in the defendant's station. If he had to the defendant's liability as apply in the made no contract releasing his right of accase of a passenger. The argument is that tion for the negligence of the defendant's as it has been held that certain persons who servants, his common-law status would be are in fact transported by the railroad in its the same as it now is.. There would be nothcars under a special contract are passengers, ing "connected with his presence" in the train having all the rights of passengers under the shed "that is inconsistent with the status law (Jones v. Railway, 125 Mo. 666, 28 S. W. of one entitled to the benefit of the law of 883, 26 L. R. A. 718, 46 Am. St. Rep. 514; negligence." Robinson v. Railroad, 80 Vt. Railroad Co. v. Lockwood, 17 Wall. 357, 21 129, 136, 66 Atl. 814, 817, 9 L. R. A. (N. S.) L. Ed. 627; Gleeson v. Railroad, 140 U. S. 1249. He would have the rights of an in- 435, 11 Sup. Ct. 859, 35 L. Ed. 458), the plaindividual rightfully laboring, either for him- tiff has the same rights because he was an self or for some third party, upon the de- employé of the express company, as to which, fendant's premises. The fact that he was it is assumed, the defendant is a common carworking for another, and not for himself, would be immaterial upon the question of the rier. The fallacy in the argument is apparent. common-law duties owed to him by others; The public policy which would render void an and he would succeed in an action for negli- express messenger's contract releasing a railgence, not in another's, but in his own right road from liability for the negligence of its as an individual. In this action he is seek- servants is the public policy which protects ing damages in no representative capacity. passengers from the consequences of such If he was rightfully upon the defendant's contracts. If it is conceded that he is not a premises as a passenger or as a laborer at- passenger, but a mere invitee upon the railtending to his proper business, in the ab- road's station, the reason of the rule does sence of contributory negligence, he would not apply to him. The same idea is expressbe entitled to recover for injuries caused ed when it is said that a railroad is a comby the defendant's negligence, or that of mon carrier of expresses, including express its servants. Indeed, this is elementary, but messengers. If that is true, then the messenits statement shows that the fact that he ger becomes, in effect, a passenger, and is enwas employed by the express company is im- titled to the protection of a passenger. But portant only as evidence that his presence in a discussion of this question is obviously not the station was rightful. His right of action necessary to the decision of this case. It is for personal injury resulting from the defend- enough to say that the plaintiff was not in ant's negligence does not depend upon the any legitimate sense a passenger at the time question whether the contracts in accordance of his injuries; and it is not perceived what with which he was employed are legal or il- common-carrier duties it owed to him, except legal. In fact, it is conceded by the defend-perhaps the duty arising from the joint arant that he was rightfully laboring in its station. In other words, as against the de

rangement entered into by the parties to afford him a reasonable opportunity to per

pra.

no direct obligation as a matter of public | respect it stands very much in the position policy to allow him to load express cars at- of an individual. Hedding v. Gallagher, sutached to its trains. Unlike a passenger, he did not seek the aid of the railroad charged As the plaintiff's relationship to the dewith the public duty of transportation, but fendant, in consequence of which he is prihe sought and obtained from the railroad the ma facie entitled to maintain an action privilege of working for the express company against it on account of its negligence and in the railroad's station. "It was a privilege that of its employés, was that of an invitee, granted to the plaintiff. The plaintiff was the question arises whether a waiver of such not compelled to enter into the contract in a claim, so far as it is based upon the fault order to obtain the rights of a passenger. of the defendant's employés, is binding upHaving those rights, he sought something on him and constitutes a defense to this ac more." Baltimore, etc., R. R. v. Voight, 176 tion. From the allegations contained in the U. S. 498, 514, 20 Sup. Ct. 385, 390, 44 L. Ed. brief statement it appears that he fully un560. If the plaintiff had brought to the sta- derstood the conditions upon which the detion express parcels of his own, and, having fendant consented to allow him to work in obtained permission to load them onto the the station for the express company, one of express car, had received his injuries, his le- which was that he would waive any right gal relation to the railroad and the latter's of action he might have growing out of the resulting duty of care toward him would be negligence of the defendant's employés with no different. In that case it would not be whom his work would bring him in contact. seriously claimed that the railroad was un- Upon this condition, he obtained not only der any obligation as a public service cor- employment from the express company, but poration to permit him to do that work to the in connection with it a license or privilege exclusion of others whom it employed or un- from the defendant of occupying its premder contract permitted to do that service. ises while engaged in his work. While it If it is a part of its public duty to furnish may be conceded that public policy prevents reasonable facilities for the transportation of the enforcement of a contract releasing a express matter (Pub. St. c. 159, § 1; Id. c. common carrier from liability for its negli160, § 1), it does not follow that it must ac-gence, it does not have that effect in this cord to all who present themselves the priv- case, for the reason that the relationship of ilege of handling in its station their express common carriage did not exist between the articles when ample facilities for the work parties. As against the plaintiff, in respect are otherwise afforded (Hedding v. Gallagh- to his right to reasonable protection from er, 72 N. H. 377, 57 Atl. 225, 64 L. R. A. 811). personal harm at the time of his injury, the If, therefore, the plaintiff had no absolute defendant did not owe him a common carright to demand of the defendant the privi- rier duty, but the usual common-law duty lege of working in its station, when engaged as applied to individuals under similar cirin his own business, he had no such right cumstances. He was not seeking the transwhen seeking the same privilege as the emportation of himself; and the duties of the ployé or agent of another. Whatever right defendant as to his person were simply to he had in this respect was purely contractuse ordinary care not to injure him, who ual; and that means that it did not exist in was rightfully upon its premises as a laborthe absence of a contract. It did not result from the fact that he was one of the public, The question thus becomes one that who have certain rights as against a pub-it does arise between master and servant, might arise between two individuals. When lic service corporation not dependent upon contract; for he was not present in that capacity, but as a laborer, engaged in performing a public service, it may be, but no more public or important than the work done in the train shed by the numerous servants of the railroad. The character of the work he was doing did not change his status from that of an invitee to that of a passenger, or place him in the category of those whose reasonable necessity requires railroad transportation which they can demand as a public right and which they are not obliged to seek as a favor or special concession. The idea may be briefly expressed by saying that one asking for and obtaining the privilege of working in a railroad station, whether in regard to his own affairs or as an agent of another, or as an employé of the railroad, is not exercising a public right which the railroad cannot refuse to recognize, but a private right which

er.

the law implies an engagement on the part of the servant that he assumes the risk of injury from the negligence of fellow servants. It may be said that public policy requires such an implication; and as a consequence, if a baggage man while attending to his duties in close proximity to the plaintiff had been injured in the same way, it would be held that he was remediless. Why should one be entitled to recover for his injury and the other not? Suppose, as often happens at small railroad stations, a man is both the express agent and the station agent or baggage man. It would be strange that public policy should preclude him, while loading an express package onto the car, from agreeing to assume the risk of the negligence of the trainmen, while the law would cast that burden upon him when throwing a trunk into the same car. The

gested is that in the one case he is acting | ants, say: "It is not the case where a paras the servant of the express company and ty stipulates for exemption from the legal in the other as the servant of the railroad. consequences of his own negligence, but one In other words, the doctrine of respondeat where he merely stipulates against a liasuperior arises in the one case, and not in bility for imputed negligence in regard to the other. Whether that furnishes a suffi- which there is no actual fault. It is easy to cient explanation it is unnecessary to in- see, therefore, that considerations of public quire, unless it also suggests some rule or policy have no application to such a case. principle of public policy which prohibits an Where a master uses due diligence in the invitee, seeking his own advantage upon an- selection of competent servants, and furother's premises, from agreeing to indemnify nishes them with suitable means and mathe latter against the negligence, not of chinery to perform the service in which he himself, but of his servants engaged in the employs them, he is not answerable to one conduct of his business. Why may not the of them for an injury received in conseplaintiff furnish that indemnity by special quence of the negligence of a fellow servant contract, as well as a surety company? while both are engaged in the same service. Here the rule of respondeat superior is waiv

In the most favorable view for the plaintiff, barring the fact that he was not a pas-ed, and it is generally put on the ground of senger, he can only be deemed an invitee of implied contract; and, if a waiver may be the defendant under a special contract; and, implied in such a case, why not give effect if for that reason prima facie the fellow- to an express agreement in the case of a servant doctrine does not apply to him, was free passenger?" By a paraphrase it may it not legally possible for him to waive his be asked why not give effect to the express immunity in this respect, in consideration of agreement of the plaintiff who was not a his employment and of acquiring a personal passenger in any sense, but was merely perright to work in the train shed? In Bates mitted to labor in the defendant's train v. Railroad, 147 Mass. 255, 267, 17 N. E. 633, shed? In view of the general policy of the 639, after holding that an express messenger law that the freedom of contract should not does not occupy the position of a passenger, be unreasonably curtailed, no special conthe court say: "The fact that the plaintiff siderations requiring or justifying the plainwas riding in the baggage car, as an express tiff's attempt to repudiate his agreement in messenger in charge of merchandise which this case are apparent. On the contrary, the was being transported there, shows more fellow-servant doctrine is strong evidence clearly that the contract by the express comthat public policy recognizes such an agreepany and the plaintiff was not unreasonable ment entered into by one in the plaintiff's or against public policy. He was there as a position as valid and binding. Railroad Co. servant engaged with the servants of the V. Lockwood, 17 Wall. 357, 21 L. Ed. 627; railroad corporation in the service of trans- Baltimore, etc., R. R. v. Voight, 176 U. S. 498, portation on the road. His duties were sub-20 Sup. Ct. 385, 44 L. Ed. 560. Whether the stantially the same as those of the baggage master in the same car; the latter relating to merchandise carried for passengers, and the former to merchandise carried for the express company. His actual relations to

the other servants of the railroad corporation engaged in the transportation were substantially the same as those of the baggage master, and would have been the same had

plaintiff is regarded as a fellow servant with where he was, the facts alleged in the brief the trainmen or as a stranger rightfully statement and admitted by the demurrer show that he cannot maintain action upon

the issue here considered.

which have not been tried. Should such

There was error in sustaining the demurrer. The defendant is entitled to a trial upon the issues of fact which may arise under he been paid by the corporation, instead of the contracts set up in the brief statement by the express company. Had the railroad trial be had, a majority of the court are of done the express business, the messenger opinion that the question whether the conwould have been held by law to have assumed the risk of the negligence of the serv- railroad was voluntarily entered into by tract between the express company and the ants of the railroad. It does not seem that the former-i. e., whether it was made as it a contract between the express company and the plaintiff on the one hand and the defend- defendant for injury to express company's was made in respect to the liability of the ant on the other that the express messenger employés at the request of the company, or in performing his duties should take the because the railroad refused or was unwillsame risk of injury from the negligence of ing to make it on other terms-may be conthe servants of the railroad engaged in the trolling. The verdict upon the issues tried transportation that he would take if employ-may stand until the other issues are dised by the railroad to perform the same duties would be void as unreasonable or as against public policy." In Griswold v. Railroad, 53 Conn. 371, 389, 4 Atl. 261, 265, 55 Am. Rep. 115, the court, referring to the

posed of.

Rehearing granted.

PARSONS, C. J., concurred. YOUNG, J., concurred in the result. BINGHAM and

(110 Md. 137)

GLEASON v. SUSKIN et al. (Court of Appeals of Maryland. Feb. 17, 1909.) 1. MASTER and Servant (§ 236*)—InjurIES— CONTRIBUTORY NEGLIGENCE.

Where an experienced and mature forewoman in an overall factory, with knowledge of the danger went between the shafting and a table, a space 16 inches wide, with her back to the shafting, while it was uncovered, for the neither necessary nor more convenient for her purpose of instructing another employé, it being to go so close to the shafting, she was negligent and could not recover for injuries caused by her dress being caught in the shafting. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 736; Dec. Dig. § 236.*] 2. TRIAL (8 178*)-INSTRUCTIONS-DIRECTING

VERDICT EVIDENCE CONSIDERED.

A statement by the court, in directing a negligence contributed to her injury so as to verdict, that upon plaintiff's own evidence her bar a recovery, did not ignore the testimony of the other witnesses, but referred to all the evidence produced by plaintiff; the use of the word "own" merely meaning that the evidence ant's evidence, showed contributory negligence. [Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 402, 403; Dec. Dig. § 178.*]

an end in the usual course. The defendant had the right to transfer to this court, upon exceptions duly taken, any questions of law arising in the course of the hearing upon the facts. Laws 1901, p. 563, c. 78, § 5; Pub. St. 1901, c. 204, §§ 11, 12. It does not appear that anything took place at the trial to lead to the inference that the defendant did not intend to exercise this right. It must therefore be concluded that the sum awarded as additional alimony included all that ought to be allowed for the expense of litigation. The court, instead of ordering judgment for the plaintiff and putting the defendant to his bill of exceptions, as might properly have been done if the exceptions had been considered frivolous, at the request of the defendant transferred the exceptions with a stipulation as to the time when the record should be made up, which appears to have been complied with. In this situation no authority is found for the order then made re-produced by plaintiff, without the aid of defendquiring the defendant to pay the plaintiff's counsel $250 if he insisted upon his exceptions, and vacating the order if the exceptions were abandoned. An allowance for the prosecution of the suit could not have been made at the inception of the proceedings before it was determined whether the former judgment should be disturbed. Neither can it be made after the precise limit of modification necessary has been decided. While the court had power to regulate the exercise of the defendant's statutory right of exception, it had no power to attach a price to its exercise. An order in effect imposing a penalty upon a party excepting in a proper manner to the ruling or orders of the trial court is beyond the power of that court. Fowler v. Towle, 49 N. H. 507. The exception to the order requiring the payment of $250 to the plaintiff's counsel on or before Decem ber 10, 1908, is sustained, and the order set aside.

The remaining exceptions do not present questions of law which were not considered and decided at the former transfer, and are overruled. Whether after the decree of divorce the plaintiff released or could release the defendant from liability for further allmony through a future modification of the decree was not determined at the former transfer, because that question was not presented by the pleadings and had not been tried in the superior court. It was suggested, however, that on the pleadings and facts as they then stood the agreement as to the amount of alimony which should be decreed could not be construed a release of alimony after the decree was made. The pleadings have not been amended. There is no new evidence or findings. It does not appear to be necessary to add anything to what has already been said.

Case discharged. All concurred.

3. NEGLIGENCE (§ 122*) - PROOF-CONTRIBUTORY NEGLIGENCE - PROOF BY PLAINTIFF'S EVIDENCE.

In an action for injuries, contributory negligence may be shown by plaintiff's own evidence, and, when so shown, defendant need not prove contributory negligence in order to entitle him to judgment.

[Ed. Note.-For other cases, see Negligence, Cent. Dig. § 232; Dec. Dig. § 122.*]

Appeal from Superior Court of Baltimore City; Henry D. Harlan, Judge.

Action by Jennie E. Gleason against Lewis B. Suskin and another. From a judgment for defendants upon a directed verdict, plaintiff appeals. Affirmed.

Argued before BOYD, C. J., and BRISCOE, PEARCE, SCHMUCKER, BURKE, THOMAS, and HENRY, JJ.

John C. Kumpf and Thomas G. Hayes, for appellant. S. S. Field, for appellees.

HENRY, J. This is an appeal from a judgment of the superior court of Baltimore City, rendered in favor of the defendants, the appellees here, in a suit instituted against them by the appellant for the recovery of damages for personal injuries sustained by her on account of the alleged negligence of the defendant.

In the view which we take of this case, it will only be necessary for us to consider the action of the court in granting the fifth prayer of the defendant, inasmuch as in our opinion such action was proper and is decisive of the case. The said prayer reads as follows: "The court instructs the jury that, upon the plaintiff's own evidence, her own want of ordinary care and caution directly contributed to the injuries which she received, and therefore the verdict of the jury must be for the defendant." The testimony of the appellant